A Different Take On Why Law Schools Are Not Admitting More Black Students

This commentary was submitted in response to a recent National Jurist article: "Why aren't law schools admitting more black students?" You can read the full article here.

By Robert Steinbuch

I read the recent National Jurist article, “Why aren’t law schools admitting more black students?,” with great interest. The article demonstrates an unfortunate truth: the intersection of race and law-school admissions remain obscured by confusion over basic facts. I hope to bring some clarity to these matters here.

Let’s start with the explosive (and patently wrong) claim that recurs throughout the article’s first eight paragraphs: that black applicants are discriminated against in law school admissions. For example, the author poses the following inquiry and response: “Is it possible that law schools are discriminating against African-American applicants, even in this day and age when diversity and inclusion are such paramount goals? Law school leaders and admissions officers, no doubt, would swear up and down that is not the case. But the numbers tell a different story.”

No, they really don’t. For example, in data from 40 law schools gathered from their 2005-2007 admissions cycles, the median odds ratio on black compared to white admissions was 150 – meaning black applicants had far greater odds of admission than white applicants. At a large majority of these law schools, if you examine what we can call the “credential point” where white applicant had a 10 percent chance of admission, comparable black applicants had a better than 80 percent chance of admission. Here’s the bottom line: the claim that law schools are generally biased against black applicants relative to white applicants is not only incorrect, it’s ridiculous. When black and white applicants with similar credentials apply to any given law school, black applicants are far more likely to gain admission than white applicants, and even more likely to be admitted when compared to Asian applicants. (The latter phenomenon is known in the literature as the “Asian Tax.” A more apt label would be a “soft quota” that caps Asian admissions to law schools.)

The ninth paragraph of the article finally reveals the phenomenon that the previous eight paragraphs obscure: black applicants apparently aren’t applying to law schools in the same way as whites. The result may be that overall admission rates for black applicants differ from those of other groups. This might reveal important societal concerns, such as the effect of poorer environments on law-school applications – known as “pipeline issues.” But it does not mean that law schools are discriminating against black applicants.

The article further critiques the percentage of black students in law school classes, stating: “Look at Yale Law School, for example. The median LSAT is 173. And, not shockingly, only 7.3 percent of its student body is black. (African Americans make up 13 percent of the U.S population.) Look at Stanford University Law School. The median LSAT is 171, and only 4.5 percent of its student body is African American.” While it’s true that African Americans make up 13 percent of the population, only roughly nine percent of college graduates are black. This suggests that the implicit 13 percent target is nonsensical, as a college degree aptly remains a prerequisite for law school.

Pipeline issues cannot be rectified by law-school admissions officers. Look at the data from the National Student Clearinghouse Research Center: “Among students who started in four-year public institutions, black students had the lowest six-year completion rate (45.9 percent). The completion rate of Hispanic students was almost 10 percentage points higher than that of black students (55.0 percent). Over two-thirds of white and Asian students completed a degree within the same period (67.2 percent and 71.7 percent, respectively). Nationally, 62.4 percent of students finished a degree or certificate within six years.” Indeed, the only way to preclude “under-representation” would be to abandon any notion of merit once it doesn’t result in demographic-group representation equal to that cohort’s percentage in the general population.

Next, the article relates the view that the LSAT doesn’t do a good job at predicting successful bar passage and lawyering skills. Some of this claim is subjective – i.e., how we understand “good” – but some of it is not.

Three years ago, The National Jurist wrote here “According to a study in the early 1990s by the Law School Admissions Council, LSAT scores and law school GPAs were found to be the ‘strongest predictors’ of bar examination passage.” Similarly, I co-authored a study finding that LSAT scores were the single best pre-law-school predictor of bar passage. And Richard Sander’s groundbreaking Stanford-Law-Review article described how combined LSAT scores and undergraduate G.P.A.s have a predictive value for bar exam performance of 35 percent. Sander aptly called this relationship “impressive.” If we want to (conservatively) isolate the predictive value of LSAT scores alone at a half or even a third of that, that’s still impressive – given that no other pre-law-school factor outside of LSAT scores and undergraduate GPA predicts more than five percent of bar performance.

As far as how well the LSAT predicts the quality of lawyering, who knows? Indeed, I cannot fathom how that could reasonably be measured. In any event, the threshold to being a good lawyer is becoming a lawyer, i.e., passing the bar. And we know that the LSAT has predictive value there.

The article further presents the rather radical view that applicants’ LSAT scores should only be compared intra-racially: “[S]uppose a black student scores higher than his peer average while a white student scores below his [but better than the black applicant]. The black applicant should have the advantage, Taylor reasons, given that he outperformed expectations.” The problem with this approach is that law schools and bar examiners don’t grade based on race – nor should they. And the LSAT is at least as predictive of bar passage for black students as it is for white students. As The National Jurist reported three years ago: “Minorities are known to struggle with passing the bar exam. Of course, they also struggle with the LSAT. But it appears that [some] schools without large numbers of minorities are able to perform better than the model [that relies on LSAT scores to predict bar passage] would predict, whereas schools with large numbers of minorities are not.” In other words, the predictive value of the LSAT on bar passage is greater for black students overall than it is for white students.

One way to reduce the salience of the LSAT would be to eliminate the bar exam entirely, or – even more absurdly – do so only for those groups whose LSAT scores are considered a hindrance to increasing specific group representation in law school. That’s certainly a theoretical option, although not one I’d support. But until that day comes, absolute LSAT scores will remain a more appropriate measure than intra-race segmented scoring, because the bar exam will remain a gate-keeper to the legal profession.

Finally, when looking at black admissions at Yale and Stanford, The National Jurist article presents the unfortunate view that the currently admitted black students aren’t good enough for additional admissions: “And the [minority] students likely aren’t the kind Taylor wants to see admitted in greater numbers. The minority students such schools accept are often from well-heeled families.” In other words, the argument apparently is “we’ve got some minorities, just not the right kind.” Oh my. At the end of the day, the admissions system that this view seemingly envisions would apparently be better served by a census form than a law-school application.

I’m reminded of the maxim in medicine that if you go to a neurologist, he’ll find a neurological problem, and if you go to a gastroenterologist, she’ll find a stomach issue. The idea, of course, is that professionals like to find solutions using their skills. I appreciate that some lawyers and law professors like to believe that the under-representation of African Americans in law, relative to their presence in the population, can be addressed through the law-school admissions process. This belief is mistaken.

Robert Steinbuch is a law professor at University of Arkansas at Little Rock. William H. Bowen School of Law and a frequent contributor to The National Jurist. He was on the UALR faculty at the same time as Aaron Taylor, who is the primary source of the article. He has previously written responses to Taylor’s commentaries on diversity and admission to law school.